B-14962, MARCH 6, 1941, 20 COMP. GEN. 509

B-14962: Mar 6, 1941

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1941: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 8. OR IS AN EMPLOYEE. IS THEREAFTER ELECTED AS A MEMBER OF THE HOUSE OF REPRESENTATIVES WITHOUT BREAK IN SERVICE. THE BENEFITS OF THE RETIREMENT ACT WERE EXTENDED TO. STATED A RULE TO THE EFFECT THAT A RETIREMENT STATUS ONCE ACQUIRED BY REASON OF A CLASSIFIED CIVIL SERVICE STATUS WAS PRESERVED SO LONG AS THE PERSON REMAINED IN THE EXECUTIVE OR JUDICIAL CIVIL SERVICE OF THE UNITED STATES EITHER AS AN OFFICER OR AN EMPLOYEE THEREOF. APPLYING THAT RULE NO DISTINCTION WAS MADE BETWEEN OFFICERS APPOINTED OF THE PRESIDENT. WHICH WAS RENDERED JUNE 3. WHICH WAS RENDERED DECEMBER 22. EXTENDED THE SAME RULE "TO THOSE PERSONS WHO HAVE ACQUIRED A COMPETITIVE STATUS IN THE CLASSIFIED CIVIL SERVICE AND SUBSEQUENTLY HAVE ACCEPTED APPOINTMENTS BY THE PRESIDENT TO NONCLASSIFIED POSITIONS AND BEEN CONFIRMED THEREIN BY THE SENATE.

B-14962, MARCH 6, 1941, 20 COMP. GEN. 509

RETIREMENT - CIVILIAN - STATUS OF EMPLOYEE AFTER ELECTION TO CONGRESS A DETERMINATION BY THE CIVIL SERVICE COMMISSION THAT A FORMER LEGISLATIVE EMPLOYEE RETAINED HIS RETIREMENT STATUS AFTER HIS ELECTION TO THE CONGRESS OF THE UNITED STATES, WITHOUT ANY BREAK IN SERVICE, WOULD NOT BE QUESTIONED BY THE GENERAL ACCOUNTING OFFICE IN THE DISPOSITION OF ANY MATTER IN WHICH SUCH DETERMINATION MAY BE INVOLVED.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, MARCH 6, 1941:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 8, 1941, REQUESTING TO BE ADVISED WHETHER THIS OFFICE CONCURS IN THE VIEW OF THE CIVIL SERVICE COMMISSION TO THE EFFECT THAT A MEMBER OF THE HOUSE OF REPRESENTATIVES HOLDS A POSITION, OR IS AN EMPLOYEE, WITHIN THE MEANING OF THE CIVIL RETIREMENT ACT, AS AMENDED, WHICH APPLICABLE STATUTE PRESERVES A RETIREMENT STATUS, ONCE ACQUIRED, TO AN EMPLOYEE WHO GOES WITHOUT BREAK IN SERVICE FROM A POSITION WITHIN THE PURVIEW OF THE RETIREMENT ACT, AS AMENDED, TO A POSITION NOT WITHIN THE PURVIEW OF SAID ACT, AND THAT AN EMPLOYEE OF THE LEGISLATIVE BRANCH OF THE GOVERNMENT WHO ACQUIRES A RETIREMENT STATUS UNDER THE PROVISIONS OF THE ACT OF JULY 13, 1937, 50 STAT. 512, AS AMENDED BY THE ACT OF JUNE 25, 1938, 52 STAT. 1197, AND IS THEREAFTER ELECTED AS A MEMBER OF THE HOUSE OF REPRESENTATIVES WITHOUT BREAK IN SERVICE, RETAINS HIS RETIREMENT STATUS.

THE ORIGINAL RETIREMENT LAW OF MAY 22, 1920, 41 STAT. 614, LIMITED ITS BENEFITS TO "ALL EMPLOYEES IN THE CLASSIFIED CIVIL SERVICE OF THE UNITED STATES," EXPRESSLY INCLUDING, ALSO, CERTAIN OTHER CLASSES OF EMPLOYEES NOT HERE MATERIAL. HOWEVER, BY SECTION 3 (D) OF THE ACT OF JULY 3, 1926, 44 STAT. 906, THE BENEFITS OF THE RETIREMENT ACT WERE EXTENDED TO, AMONG OTHERS,"UNCLASSIFIED EMPLOYEES TRANSFERRED FROM CLASSIFIED POSITIONS.' BUT EVEN PRIOR TO THE ENACTMENT OF THE 1926 AMENDATORY STATUTE, THE ATTORNEY GENERAL IN THREE OPINIONS, NAMELY, 34 OP. ATTY. GEN. 192; ID. 334; ID. 515, STATED A RULE TO THE EFFECT THAT A RETIREMENT STATUS ONCE ACQUIRED BY REASON OF A CLASSIFIED CIVIL SERVICE STATUS WAS PRESERVED SO LONG AS THE PERSON REMAINED IN THE EXECUTIVE OR JUDICIAL CIVIL SERVICE OF THE UNITED STATES EITHER AS AN OFFICER OR AN EMPLOYEE THEREOF. APPLYING THAT RULE NO DISTINCTION WAS MADE BETWEEN OFFICERS APPOINTED OF THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, AND EMPLOYEES, WHO OCCUPY EXCEPTED OFFICES OR POSITIONS AFTER SERVICE IN A CLASSIFIED CIVIL SERVICE POSITION.

THE FIRST CITED OPINION OF THE ATTORNEY GENERAL, WHICH WAS RENDERED JUNE 3, 1924, APPLIED THE RULE TO ANY PERSON WHO HAD ONCE ACQUIRED A RETIREMENT STATUS OR OCCUPIED A CLASSIFIED CIVIL SERVICE STATUS UPON TRANSFER TO A NONCLASSIFIED POSITION. THE SECOND CITED OPINION OF THE ATTORNEY GENERAL, WHICH WAS RENDERED DECEMBER 22, 1924, EXTENDED THE SAME RULE "TO THOSE PERSONS WHO HAVE ACQUIRED A COMPETITIVE STATUS IN THE CLASSIFIED CIVIL SERVICE AND SUBSEQUENTLY HAVE ACCEPTED APPOINTMENTS BY THE PRESIDENT TO NONCLASSIFIED POSITIONS AND BEEN CONFIRMED THEREIN BY THE SENATE, SO LONG AS SUCH PERSONS REMAIN CONTINUOUSLY IN THE EXECUTIVE OR JUDICIAL CIVIL SERVICE OF THE UNITED STATES.' THE LAST CITED OPINION OF THE ATTORNEY GENERAL WAS RENDERED JUNE 24, 1925, AND IT APPLIED THE SAME RULE TO PRESERVE THE RETIREMENT STATUS OF A LAW CLERK TO A JUSTICE OF THE SUPREME COURT OF THE UNITED STATES, WHICH POSITION WAS NOT THEN WITHIN THE PURVIEW OF THE RETIREMENT ACT. COMPARE 5 COMP. GEN. 254; 6 ID. 69; ID. 118; ID. 572; 7 ID. 150; ID. 246; 9 ID. 69. ALSO, SEE DECISION OF APRIL 23, 1931, 10 COMP. GEN. 491, WHEREIN THE VIEW WAS EXPRESSED THAT THE AMENDMENT IN THE RETIREMENT ACT EXTENDING RETIREMENT BENEFITS TO "UNCLASSIFIED EMPLOYEES TRANSFERRED FROM CLASSIFIED POSITIONS" WAS INTENDED "TO GIVE STATUTORY APPROVAL TO THE PRIOR OPINIONS OF THE ATTORNEY GENERAL AND THE DECISIONS OF THE COMPTROLLER GENERAL THAT RETIREMENT BENEFITS WERE PRESERVED TO ALL EMPLOYEES UNDER THE FEDERAL GOVERNMENT SERVING IN POSITIONS NOT WITHIN THE PURVIEW OF THE CIVIL RETIREMENT ACT, IF SUCH SERVICE IS CONTINUOUS WITH PRIOR SERVICE IN POSITIONS WITHIN THE PURVIEW OF THE CIVIL RETIREMENT ACT.'

REGARDING THE TERMS OF THE ACT OF JULY 13, 1937, 50 STAT. 512, AS AMENDED BY THE ACT OF JUNE 25, 1938, 52 STAT. 1197, EXTENDING THE RETIREMENT ACT TO LEGISLATIVE AND COURT EMPLOYEES, UNDER WHICH LEGISLATION THE CONGRESSMAN MENTIONED IN YOUR LETTER ACQUIRED A RETIREMENT STATUS WHILE HE WAS A LEGISLATIVE EMPLOYEE, IT WAS STATED IN DECISION OF MARCH 2, 1939, 18 COMP. GEN. 683, 685, AS FOLLOWS:

* * * THE GENERAL RULE STATED UNDER THE RETIREMENT ACT TO WHICH YOU REFER "THAT RETIREMENT BENEFITS ARE PRESERVED TO ALL EMPLOYEES UNDER THE FEDERAL GOVERNMENT SERVING IN POSITIONS NOT WITHIN THE PURVIEW OF THE RETIREMENT ACT IF SUCH SERVICE IS CONTINUOUS WITH PRIOR SERVICE IN POSITIONS WITHIN THE PURVIEW OF THE CIVIL RETIREMENT ACT" MAY BE APPLIED TO PRESERVE THE RETIREMENT STATUS OF AN EMPLOYEE TRANSFERRED WITHOUT BREAK IN SERVICE FROM A POSITION IN ANOTHER BRANCH OF THE SERVICE TO A SENATE POSITION DURING THE FIRST 7 YEARS OF SERVICE (SEE ALSO SEC. 1 OF THE ACT OF JULY 13, 1937), BUT SAID RULE MAY NOT BE APPLIED TO DEFEAT THE STATUTORY PROHIBITION AGAINST MAKING RETIREMENT DEDUCTIONS FROM COMPENSATION PAID IN WHOLE OR IN PART BY THE DISBURSING OFFICER OF THE SENATE DURING THE FIRST 7 YEARS OF SERVICE. * * *

WITH RESPECT TO THE PROPOSITION OF WHETHER A CONGRESSMAN MAY BE TERMED AN OFFICER OR EMPLOYEE OF THE UNITED STATES YOUR LETTER STATES:

IN LAMAR V. UNITED STATES (241 U.S. 103), A CASE INVOLVING PROSECUTION UNDER SECTION 32 OF THE PENAL CODE WHICH PROHIBITS AND PUNISHES THE FALSE ASSUMING, WITH THE INTENTION TO DEFRAUD, TO BE AN OFFICER OR EMPLOYEE OF THE UNITED STATES, ETC., THE SUPREME COURT HELD THAT A MEMBER OF THE HOUSE OF REPRESENTATIVES IS AN OFFICER OF THE UNITED STATES WITHIN THE MEANING OF SAID SECTION. THE COURT, STATED AMONG OTHER THINGS:

"GUIDED BY THESE RULES, WHEN THE RELATIONS OF MEMBERS OF THE HOUSE OF REPRESENTATIVES TO THE GOVERNMENT OF THE UNITED STATES ARE BORNE IN MIND AND THE NATURE AND CHARACTER OF THEIR DUTIES AND RESPONSIBILITIES ARE CONSIDERED, WE ARE CLEARLY OF THE OPINION THAT SUCH MEMBERS ARE EMBRACED BY THE COMPREHENSIVE TERMS OF THE STATUTE. IF HOWEVER CONSIDERED FROM THE FACE OF THE STATUTE ALONE THE QUESTION WAS SUSCEPTIBLE OF OBSCURITY OR DOUBT--- WHICH WE THINK IS NOT THE CASE--- ALL GROUND FOR DOUBT WOULD BE REMOVED BY THE FOLLOWING CONSIDERATIONS: (A) BECAUSE PRIOR TO AND AT THE TIME OF THE ORIGINAL ENACTMENT IN QUESTION THE COMMON UNDERSTANDING THAT A MEMBER OF THE HOUSE OF REPRESENTATIVES WAS A LEGISLATIVE OFFICER OF THE UNITED STATES WAS CLEARLY EXPRESSED IN THE ORDINARY, AS WELL AS LEGAL, DICTIONARIES. SEE WEBSTER, VERBO OFFICE; CENTURY DICTIONARY, VERBO OFFICER; BOUVIER'S LAW DICTIONARY (EDITION OF 1897) VOL. 2, PAGE 540, VERBO LEGISLATIVE OFFICERS; BLACK'S LAW DICTIONARY (2D EDITION) PAGE 710, VERBO LEGISLATIVE OFFICER. (B) BECAUSE AT OR BEFORE THE SAME PERIOD IN THE SENATE OF THE UNITED STATES AFTER CONSIDERING THE RULING IN THE BLOUNT CASE, IT WAS CONCLUDED THAT A MEMBER OF CONGRESS WAS A CIVIL OFFICER OF THE UNITED STATES WITHIN THE PURVIEW OF THE LAW REQUIRING THE TAKING OF AN OATH OF OFFICE ( CONG. GLOBE, 38TH CONG., ST SESS., PT. 1, PP. 320-321). (C) BECAUSE ALSO IN VARIOUS GENERAL STATUTES OF THE UNITED STATES AT THE TIME OF THE ENACTMENT IN QUESTION A MEMBER OF CONGRESS WAS ASSUMED TO BE A CIVIL OFFICER OF THE UNITED STATES. REVISED STATUTES, SECTIONS 1786, 2010, AND SUBDIVISION 14 OF SECTION 563. (D) BECAUSE THAT CONCLUSION IS THE NECESSARY RESULT OF PRIOR DECISIONS OF THIS COURT AND HARMONIZES WITH THE SETTLED CONCEPTION OF THE POSITION OF MEMBERS OF STATE LEGISLATIVE BODIES AS EXPRESSED IN MANY STATE DECISIONS.' THE FLOYD ACCEPTANCE, 7 WALL. 666, 676; EX PARTE YARBROUGH, 110 U.S. 651, 654; WILEY V. SINKLER, 179 U.S. 58, 64; SWAFFORD V. TEMPLETON, 185 U.S. 487, 492; PEOPLE V. COMMON COUNCIL, 77 N.Y. 503, 507-508; MORRIL V. HAINES, 2 N.H. 246; SHELBY V. ALCORN, 36 MISSISSIPPI, 273, 291; PARKS V. SOLDIERS' HOME, 22 COLORADO, 86, 96.

SECTIONS 1756, 1759, 1786, AND 2010 OF THE REVISED STATUTES RECOGNIZE MEMBERS OF CONGRESS AS OFFICERS OF THE UNITED STATES. DECISIONS OF STATE COURTS AND STATE STATUTES RECOGNIZE MEMBERS OF THE STATE LEGISLATURES AS STATE OFFICERS, MORRIL V. HAINES, 2 N.H. 246, 251; SHELBY V. ALCORN, 36 MISSISSIPPI, 273 291; STATE V. DILLON, 90 MISSOURI, 229, 233; REV. STAT., N.Y., 1829, V. 1, P. 95, AND IT IS ESTABLISHED BY DECISIONS OF STATE COURTS THAT A MEMBER OF CONGRESS ISA FEDERAL AND NOT A STATE OFFICER, EVERSOLE V. BROWN, 21 KY. LAW REP. 925, 927; STATE V. GIFFORD, 22 IDAHO, 613, 632-633; STATE V. RUSSELL, 10 OHIO DEC. 255, 264. SECTION 6, ARTICLE I OF THE CONSTITUTION OF THE UNITED STATES STATES THAT THE SENATORS AND REPRESENTATIVES SHALL RECEIVE A COMPENSATION FOR THEIR SERVICES, TO BE ASCERTAINED BY LAW, AND PAID OUT OF THE TREASURY OF THE UNITED STATES.

IN VIEW OF THE FOREGOING, YOU MAY BE ADVISED THAT SHOULD THE COMMISSION DETERMINE THAT THE RETIREMENT STATUTE OF THE FORMER LEGISLATIVE EMPLOYEE IS RETAINED NOTWITHSTANDING HIS SUBSEQUENT ELECTION TO THE CONGRESS OF THE UNITED STATES, WITHOUT ANY BREAK IN SERVICE, THIS OFFICE WOULD NOT QUESTION THAT DETERMINATION IN THE DISPOSITION OF ANY MATTER WHICH MAY COME BEFORE THIS OFFICE FOR OFFICIAL ACTION IN WHICH SUCH DETERMINATION MAY BE INVOLVED. COMPARE 19 COMP. GEN. 52.